/ 


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[In  reference  to  the  Bill  from  the  Senate  No.  36—“  to  provide  tor  the  ascertainment 
and  satisfaction  of  Claims  of  American  citizens  for  spoliations  committed  by  the 
French  prior  to  31  July,  1801,”  and  now  pending  in  the  House  of  Representatives.] 


WAR  WITH  FRANCE— WHEN  ? 

The  leading  objection  to  the  indemnity  bill  now  pending  in  Congress,  for  the  relief  of 
the  sufferers  by  French  spoliations  committed  on  the  property  of  our  citizens  prior  to  the 
date  of  the  convention  with  France  of  September,  1800,  has  uniformly  been,  that  the 
Government  of  the  United  States  had  recourse  to  war  with  France,  in  which  these  claims 
were  merged  and  lost. 

Those  who  take  that  untenable  position  do  not  seem  so  have  discovered  its  fallacy,  nor 
the  absurdity  of  its  inevitable  result.  If  war  and  victory,  then  we  gained  the  claims  ; 
and  where  are  they  now  ? — if  war  and  defeat,  by  which  alone  they  could  be  lost,  no  one 
living  will  dare  assert  so  humiliating  an  untruth. 

In  fact,  there  was  no  war;  and  the  object  of  the  following  is  to  establish  that  fact  so 
clearly  that  no  sound  mind  can  entertain  a  doubt  on  the  subject. 

War  can  only  be  declared  by  Congress,  and  no  such  declaration  was  mado;  even  re¬ 
prisals  were  not  authorized. 

If  war,  when  did  it  commence,  and  when  terminate  ?  Certainly  it  did  not  exist  while 
our  Ministers  were  negotiating  at  Paris  in  1797-8,  and  in  1799,  up  to  the  30th  Sep. 
tember,  1800,  at  which  last  date  the  Convention  was  concluded  and  ratified  by  Bonaparte, 
first  Consul :  it  had,  therefore,  no  beginning.  When  did  it  terminate  ?  Certainly  not 
in  virtue  of  said  Convention :  no  one  ever  heard  of  a  Convention  of  peace — a  real  treaty 
alone  can  close  a  war.  A  Convention  binds  the  nation  at  whose  court  it  is  concluded  ; 
but  doe3  not  bind  the  distant  nation  whose  negotiator  has  signed  such  Convention,  it 
being  fully  understood  on  all  sides  that  in  so  signing  he  has  exceeded  the  authority  con¬ 
fided  to  him,  and  has  therefore  agreed  to  a  provisional  arrangement  or  Convention,  which 
his  Government  is  at  liberty  to  adopt  or  not,  at  its  own  pleasure.  There  is  no  instance 
of  a  Convention  of  peace  in  the  history  of  any  and  all  the  nations  of  the  earth.  Besides, 
this  Convention  was  limited  in  duration  to  eight  years ;  therefore,  if  war  had  existed, 
the  Convention  would  have  been  merely  a  truce  for  eight  years,  and  at  the  expiration  of 
the  eight  years,  the  war  must  either  have  been  resumed  or  a  treaty  of  peace  then  con¬ 
cluded  ;  no  such  resumption  or  treaty  was  even  then  dreamt  of,  or  can  now  be  asserted. 

That  Convention  do^snot  mention  either  war  or  peace ;  its  title  runs  thus: 

“The  premier  Consul  of  the  French  Republic,  in  the  name  of  the  people  of  France, 
and  the  President  of  the  United  States  of  America,  equally  desirous  to  terminate  the 
differences  which  have  arisen  between  the  two  States,  have  respectively  appointed  their 
plenipotentiaries,  and  given  them  full  powers  to  treat  upon  those  differences,  and  to  ter¬ 
minate  the  same,  &c.  &c. 

There  is  nothing  in  the  Convention,  therefore,  to  sustain  the  allegation  that  war  ex¬ 
isted  with  France. 

Let  us  now  turn  to  the  acts  of  Congress  to  ascertain  whether  a  state  of  war  diroctly  or 
by  implication  may  be  found  in  them. 

The  first  of  these  acts  is  dated  May  28,  1798 — to  raise  a  provisional  army,  viz  : 

“  That  the  President  of  the  United  States  be,  and  he  is  hereby  authorized,  in  the  ezent 
of  a  declaration  of  war  against  the  5  United  States,  or  of  actual  invasion  of  their  territory, 


2 

by  a  foreign  power ;  or  of  imminent  danger  of  such  invasion  discovered,  in  his  opinion, 
to  exist,  before  the  next  session  of  Congress,  to  cause  to  be  enlisted”  ten  thousand  men. 

And  on  the  same  day.  May  28,  1798,  Congress  passed  the  following  act : 

“  Whereas  armed  vessels,  sailing  under  authority,  or  pretence  of  authority,  from  the 
Republic  of  France,  have  committed  depredations  bn  the  commerce  of  the  United  States, 
and  have  recently  captured  the  vessels  and  property  of  citizens  thereof  on  and  near  the 
coast,  in  violation  of  the  law  of  nations,  and  treaties  between  the  United  States  and  the 
French  nation :  therefore, 

“  Sec.  1.  That  it  shall  be  lawful  for  the  President  of  the  United  States,  and  he  is  here¬ 
by  authorized,  to  instruct  and  direct  the  commanders  of  the  armed  vessels  belonging  to 
the  United  States,  to  seize,  take  and  bring  into  any  port  of  the  United  States,  to  be 
proceeded  against  according  to  the  laws  of  nations,  any  such  armed  vessel,  which  shall 
have  committed,  or  which  shall  be  found  hovering  on  the  coasts  of  the  United  States  for 
the  purpose  of  committing  depredations  on  the  vessels  belonging  to  citizens  thereof ; 
and  also  to  retake  any  ship  or  vessel,  of  any  citizen  of  the  United  States,  which  may 
have  been  captured  by  any  such  armed  vessel.” 

Act  of  June  18,  1798 — to  suspend  the  commercial  intercourse  between  the  United 
States  and  France : 

“  Sec.  4.  That  this  act  shall  continue  and  be  in  force  until  the  end  of  the  next  session 
of  Congress,  and  no  longer. 

“  Sec.  5.  Provided,  That  if,  before  the  next  session  of  Congress,  the  Government  of 
France,  and  all  persons  acting  by  or  under  their  authority,  shall  clearly  disavow,  and 
shall  be  found  to  refrain  from  the  aggressions,  depredations  and  hostilities  which  have 
been  and  are  by  them  encouraged  and  maintained  against  the  vessels  and  other  property 
of  the  citizens  of  the  United  States,”  &c.,  in  such  event  the  President  may  remit  and 
discontinue  tho  prohibitions  hereby  enacted. 

If  war  then  existed,  it  would  of  itself  have  suspended  commercial  intercourse,  not 
for  one  year  only,  but  during  the  war. 

Act  of  June  25,  1798 — to  authorize  the  defence  of  the  merchant  vessels  of  the  United 
States  against  French  depredations: 

“  Sec.  2.  That  whenever  the  commander  and  crew  of  any  merchant  vessel  of  the  United 
States  shall  subdue  and  capture  any  French  or  pretended  French  armed  vessel,  from 
which  an  assault  or  other  hostility  shall  b e  first  made,  as  aforesaid,  such  armed  vessel, 
with  her  tackle,  appurtenances,  ammunition,  and  lading,  shall  accrue,  the  one-half  to 
the  owners  of  such  merchant  vessel  of  the  United  States,  and  the  other  half  to  the  cap- 
tors. 

“  Sec.  5.  That  this  act  shall  continue  and  be  in  force  for  the  term  of  one  year,  and  until 
the  end  of  the  next  session  of  Congress  thereafter. 

“Sec.  6.  Provided,  That  whenever  the  Government  of  France,  and  all  persons  acting 
by,  or  under  their  authority,  shall  disavow,  and  shall  cause  the  commanders  and  crews 
of  all  armed  French  vessels  to  refrain  from  the  lawless  depredations  and  outrages  hitherto 
encourged  and  authorized  by  that  Government,  against  the  merchant  vessels  of  the  United 
States,”  &c.,  the  President  is  authorized  to  suspend  this  act. 

If  war  then  existed,  it  is  obvious  that  this  act  was  unnecessary  and  absurd. 

Act  of  July  6,  1798 — an  act  respecting  alien  enemies: 

“  Sec.  1.  That  whenever  there  shall  be  a  declared  war  between  the  United  States  and 
any  foreign  nation  or  government,  or  any  invasion  or  predatory  incursion  shall  be  per¬ 
petrated,  attempted  or  threatened  against  the  territory  of  the  United  States  by  any  foreign 
nation  or  government,  and  the  President  of  the  United  States  shall  make  public  procla¬ 
mation  of  the  event,”  all  subjects  of  the  hostile  nation  shall  be  removed  as  alien  enemies. 

No  such  proclamation  was  ever  made. 

Act  of  July  7,  1798 — an  act  to  declare  the  treaties  heretofore  concluded  with  Franco 
no  longer  obligatory  on  the  United  States : 

“  Whereas  the  treaties  concluded  betweeen  the  United  States  and  France  have  been 
repeatedly  violated  on  the  part  of  the  French  Government :  and  the  just  claims  of  the 
United  States  for  reparation  of  the  injuries  so  committed  have  been  refused,  and  their 
attempts  to  negotiate  an  amicable  adjustment  of  all  complaints  between  the  two  na¬ 
tions  have  been  repelled  with  indignity ;  and  whereas,  under  authority  of  the  French 
Government,  there  is  yet  pursued  against  the  United  States  a  system  of  predatory  vio- 


3 


lence,  infracting  the  said  treaties,  and  hostile  to  the  rights  of  a  free  and  independent  na¬ 
tion  : 

“Sec.  1.  That  the  United  States  are  of  right  freed  and  exonerated  from  the  stipula¬ 
tions  of  the  treaties,  and  of  the  Consular  Convention,  heretofore  concluded  between  the 
United  States  and  France ;  and  that  the  same  shall  not  henceforth  be  regarded  as  legally 
obligatory  on  the  Government  or  citizens  of  the  United  States.” 

g^“If  war  then  existed,  it  would  of  itself  annul  treaties  without  such  an  act  of  Congress. 

Act  of  July  16,  1798 — to  augment  the  army  of  the  United  States,  &c.: 

“Sec.  2.  That  the  President  of  the  United  States  be,  and  he  hereby  is,  authorized  to 
raise,  in  addition  to  the  present  military  establishment,  twelve  regiments  of  infantry, 
and  six  troops  of  light  dragoons,  to  be  enlisted  for  and  during  the  continuance  of  the  ex¬ 
isting  differences  between  the  United  States  and  the  French  .Republic,  unless  sooner  dis¬ 
charged.” 

This  act  prepared  for  expected  war,  which,  nevertheless,  did  not  come. 

Act  of  Feb.  9,  1799 — an  act  further  to  suspend  the  commercial  intercourse  between 
the  United  States  and  France : 

Sec.  4.  (The  President  may  remit  and  discontinue  this  act.) 

Sec.  8.  That  this  act  shall  continue  and  be  in  force  until  the  third  day  of  March,  in 
the  year  1800.” 

If  war  then  existed,  it  would  of  itself  have  suspended  such  intercourse  until  peace. 

Act  of  March  2,  1799 — an  act  giving  eventual  authority  to  the  President  of  the  United 
States  to  augment  the  army : 

“  Sec.  1.  That  it  shall  be  lawful  for  the  President  of  the  United  States,  in  case  war 
shall  break  out  between  the  United  States  and  a  foreign  European  power,  or  in  case  of 
imminent  dauger  of  invasion,”  to  raise  twenty-four  regiments  of  infantry,  &c. 

“  Sec.  11.  That  the  powers,  by  the  first  and  second  sections  of  this  act  vested  in  the 
President  of  the  United  States,  shall  cease  at  the  expiration  of  the  session  of  Congress 
next  ensuing  the  present,  unless  they  shall  be,  by  some  future  law,  continued  in  force 
for  a  longer  time.” 

jgjgT5  The  words  used  in  this  act,  “  in  case  war  shall  break  out,”  clearly  shows  that  up 
to  that  time  war  had  not  broken  out. 

Act  of  March  3,  1799 — for  the  better  organizing  of  the  troops  of  the  United  States  • 

“  Sec.  1.  (Certain  troops  theretofore  authorized)  “  not  to  be  raised,  until  further  pro¬ 
vision  shall  be  so  made,  unless  war  shall  break  out  between  the  United  States  and  some 
European  Prince,  People  or  State,  in  which  case  it  shall  be  lawful  for  the  President  of 
the  United  States,  at  his  discretion,  to  cause  the  said  regiments,  or  any  of  them,  to  be 
severally  completed  to  their  full  establishment.” 

Act  of  Feb.  20,  1800 — an  act  to  suspend,  in  part,  an  act  entitled  “  An  act  to  augment 
the  army  of  the  United  States:” 

“Sec.  1.  That  all  further  enlistments  under  the  second  section  of  an  act  entitled  ‘An 
act  to  augment  the  army  of  the  United  States,’  &c.,  shall  be  suspended  until  the  further 
order  of  Congress,  unless  in  the  recess  of  Congress,  and  during  the  continuance  of  the 
existing  differences  between  the  United  States  and  the  French  Republic,  war  shall  break 
out  between  the  United  States  and  the  French  Republic,  or  imminent  danger  of  invasion 
of  their  territory,  by  the  said  Republic,  shall,  in  the  opinon  of  the  President  of  the  United 
States,  be  discovered  to  exist.” 

gjjjgr*  The  expected  war  had  not  come. 

Act  of  22d  April,  1800 — 

“  An  act  to  authorize  the  defence  of  the  merchant  vessels  of  the  United  States  against 
French  depredations — shall  continue  and  be  in  force  for  and  during  the  term  of  one  year, 
and  from  thence  to  the  end  of  the  next  session  of  Congress  thereafter,  and  no  longer.’* 

The  suspected  war  had  not  yet  come. 

Act  of  May  14,  1800 — an  act  supplementary  to  the  act  to  suspend  part  of  an  act  en¬ 
titled  “An  act  to  augment  the  army  of  the  United  States,  &c. 

“  Sec.  1.  That  it  shall  be  lawful  for  the  President  of  the  United  States  to  suspend  any 
further  military  appointments,”  &c, 

“  Sec.  2.  That  the  President  of  the  United  States  shall  be,  and  hereby  is,  authorized 
and  empowered  to  discharge,  on  or  before  the  15th  day  of  June  next,  all  such  officers, 


4 


non  commissioned  officers  and  privates,  as  have  heretofore  been  appointed,  commissioned, 
or  raised,  under  and  by  virtue  of  the  said  acts,  or  either  of  them,  except  the  engineers, 
inspector  of  ariillery,  and  inspector  of  fortifications,”  and  to  pay  those  so  discharged 
three  months’  extra  pay. 

The  expected  war  was  no  longer  looked  for. 

Act  of  March  3,  1801 — an  act  providing  for  a  naval  peace  establishment; 

Sec.  1.  That  the  President  of  the  United  States  be,  and  he  hereby  is,  authorized,  when¬ 
ever  the  situation  of  public  affairs  shall  in  his  opinion  render  it  expedient,  to  cause  to  be 
sold,  they  being  first  divested  of  their  guns  and  military  stores,  which  are  to  to  be  care¬ 
fully  preserved,  all  or  any  of  the  ships  and  vessels  belonging  to  the  navy,  except  [13 
frigates,  therein  named,]  and  also  to  lay  up  all  the  frigates  thus  to  be  retained,  except 
such  as  are  directed  by  this  act  to  be  kept  in  constant  service  in  time  of  peace.” 

“  Sec.  5.  That  all  the  commissioned  and  warrant  officers  who  shall  be  discharged  as 
aforesaid  shall  be  entitled  to  receive  four  months’  extra  pay.” 

The  public  vessels  so  ordered  to  be  sold  were  fothwith  sold.  And  thus  it  appears 
that  the  army  was  disbanded  and  the  naval  vessels  sold — the  army  19  months,  and  the 
naval  vessels  9  months  before  the  Convention  of  1800  was  definitively  ratified,  which 
ratification  bears  date  Dec.  21st,  1801.  And  it  thus  further  appears  by  the  acts  of  Con¬ 
gress  above  cited,  and  from  said  Convention,  that  no  war  existed  between  the  United 
States  and  France. 

The  instructions  to  our  envoys  to  France,  Messrs.  Ellsworth,  Davie  and  Murray,  who 
negotiated  the  convention  with  France  of  September  30,  1800,  contain  the  following,  after 
reciting  the  aggressions  and  depredations  of  France.  The  instructions  are  dated  Octo¬ 
ber  22,  1799.  (Vide  Senate  doc.,  1st  sess.  19th  Cong.,  vol.  5,  doc.  No.  102,  p.  561 :) 

“  This  conduct  of  the  French  Republic  would  well  have  justified  an  immediate  declara¬ 
tion  of  war  on  the  part  of  the  United  States  ;  but  desirous  of  maintaining  peace,  and  still 
willing  to  leave  open  the  door  of  reconciliation  with  France,  the  United  States  contented 
themselves  with  preparations  for  defence,  and  measures  calculated  to  protect  their  com¬ 
merce.” 

Extract. — Mr.  Marshall,  Secretary  of  State,  (late  Chief  Justice,)  to  Mr.  Rufus  King, 
our  Minister  to  Great  Britain,  dated  September  20,  1800.  (Vide  same  vol.,  doc.  No. 
306,  p.  452:) 

“  The  aggressions,  sometimes  of  one,  and  sometimes  of  another  belligerent  power,  have 
forced  us  to  contemplate  and  to  prepare  for  war,  as  a  probable  event.  We  have  repelled, 
and  we  will  continue  to  repel,  injuries  not  doubtful  in  their  nature,  and  hostility  not  to 
be  misunderstood.  But  this  is  a  situation  of  necessity,  not  of  choice ;  it  is  one  in  which 
we  are  placed,  not  by  our  own  acts,  but  by  the  acts  of  others,  and  which  we  change  so 
soon  as  the  conduct  of  others  will  permit  us  to  change  it. 

“  The  regularly  accumulating  injuries  sustained  from  France  had,  in  1798,  progressed 
to  such  a  point,  as  to  leave  to  the  United  States  no  reasonable  ground  of  doubt  that  war 
was  to  be  expected,  and  that  force,  and  force  only,  could  be  relied  on  for  the  maintenance 
of  our  rights  as  a  sovereign  and  independent  nation.  Force,  therefore,  was  resorted  to  ; 
but  in  the  very  act  of  resorting  to  it,  our  preference  for  peace  was  manifest,  and  it  was 
apparent  that  we  should  return  to  our  natural  situation,  so  soon  as  the  wrongs  which 
forced  us  from  it  should  cease,  and  security  against  their  repetition  be  offered.  A  rea¬ 
sonable  hope  that  this  state  of  things  may  be  attained  has  been  furnished  by  the  recent 
conduct  and  overtures  of  the  French  Government ;  America  meets  these  overtures,  and, 
in  doing  so,  only  adheres  to  her  pacific  system.” 

Extract. — Letter  from  Messrs.  Ellsworth,  Davie  and  Murray,  to  the  French  negotia¬ 
tors,  dated  April  11,  1800.  (Vide  same  vol.,  doc.  No.  354,  p.  582:) 

“With  respect  to  the  acts  of  Congress,  which  the  hard  alternative  of  abandoning  their 
commerce,  ruin  imposed,  and  which,  far  from  contemplating  a  co-operation  with  the 
enemies  of  the  Republic,  did  not  even  authorize  reprisals  upon  her  merchantmen,  but 
were  restricted  solely  to  the  giving  of  safety  to  their  own,  till  a  moment  should  arrive 
when  their  sufferings  could  be  heard  and  redressed.” 

Extract. — Letter  from  the  French  negotiators  to  Messrs.  Ellsworth,  Davie  and  Murray, 
dated  Aug.  11,  1800.  (Vide  same  vol.,  doc.  317,  p.  616:) 

“In  the  first  place,  they  [the  French  Ministers]  will  insist  upon  the  principle  already 
laid  down  in  their  former  note,  viz.,  that  the  treaties  which  united  France  and  the  United 


5 


States  are  not  broken  ;  that  even  war  could  not  have  broken  them,  but  that  the  state  of 
misunderstanding  which  has  existed  for  some  time  between  France  and  the  United  States, 
by  the  aGts  of  some  agents,  rather  than  by  the  will  of  the  respective  Governments,  has 
not  been  a  state  of  war,  at  least  on  the  side  of  France. 

Extract. — Letter  from  the  French  Minister  of  Exterior  Relations  to  M.  Pichon,  the 
Minister  of  France  to  the  Hague,  dated  Aug.  28,  1798.  (Vide  same  vol.,  doc.  393,  p. 
649;) 

“France,  in  fine,  has  a  double  motive,  as  a  nation  and  as  a  republic,  not  to  expose  to 
any  hazard  the  present  existence  of  the  United  States.  Therefore,  it  never  thought  of 
making  war  against  them:  and  every  contrary  supposition  is  an  insult  to  common  sense.” 

Extract. — Letter  from  the  French  negotiators  to  the  French  Minister  of  Exterior  Re¬ 
lations,  explaining  the  provisions  of  the  Convention  of  1800,  dated  12th  of  December, 
1801.  (Vide  same  vol.,  doc.  344,  p.  559:) 

“The  intention  of  the  treaty  [convention]  is  to  effect  a  general  restitution  of  all  prop¬ 
erty  acknowledged  as  American  or  as  French,  which  at  the  time  of  the  signature  was  not 
condemned.  The  text  to  accomplist  this  object,  has  announced  the  proofs  of  property 
that  would  be  exacted  on  board  merchant  vessels,  and  afterwards  on  board  armed  vessels. 
This  distinction  was  necessary,  on  account  of  the  almost  hostile  state  of  the  two  notions, 
which  all  at  once  succeeded  a  state  of  perfect  neutrality.” 

Extract  from  the  “Code  Diplomatique,”  by  Portiez  (de  P  Oise)  Tribun.  A  Paris,  Mes- 
sidor  An  X,  July  1802,  “relative  to  the  Convention  of  Sept.  30,  1800,  between  the  Uni¬ 
ted  States  and  France :” 

[Translation.]  “The  following  papers  will  serve  to  exhibit  the  causes  which,  for  a 
moment,  ruffled  the  harmony  between  the  two  States,”  &c. 

Report  on  the  proposed  ratification  of  the  Convention  of  1800,  made  to  the  Corps  Le- 
gislatif,  by  the  Counsellor  of  State,  by  order  of  the  Consuls : 

«<  *  *  *  jn  1792,  when  war  broke  out  between  France  and  England,  the  United  States 
found  themselves  embarrassed  between  their  engagements  towards  the  one  and  the  power 
of  the  other.  Difficulties  sprang  up  as  to  the  interpretation  of  the  treaties  ;  discussions 
became  embittered  by  the  criminations  on  one  side  and  the  other,  which  the  distance  and 
the  difficulty  of  communication  did  not  permit  of  being  dissipated.  A  treaty  of  amity 
and  commerce,  concluded  during  these  circumstances,  between  the  United  States  and 
England,  [Mr.  Jay’s  treaty,]  was  regarded  in  France  as  a  proof  of  partiality  in  favor  of 
her  enemy.  The  commercial  agents  of  the  Republic  gave  rise  to  and  excited  some  irri¬ 
tation  ;  the  commerce  of  the  United  States  was  disturbed  by  French  privateers ;  several 
captures,  to  their  injury,  followed  ;  the  American  Congress  then  believed  itself  at  liberty 
to  declare  the  United  States  exonerated  from  the  treaties  which  united  them  to  France ; 
they  broke  off  their  relations  with  her ;  they  granted  letters  of  marque  against  her  armed 
vessels  in  the  colonies  ;  and  the  encounters  at  sea  between  the  vessels  of  the  two  nations 
soon  announced  that  the  reconciliation  should  be  hastened  if  it  was  desired  that  it  should 
not  become  very  difficult. 

“Such  was  the  state  of  things  when  three  American  negotiators  arrived  at  Paris,  led 
hither  by  the  desire  and  the  hope  of  preventing  a  signal  rupture. 

“American  commerce  was  alleged  to  have  suffered  considerable  losses — the  negotiators 
demanded  indemnity  for  them. 

“The  French  Government  had  also  to  allege  claims  for  her  commerce,  which  had  suf¬ 
fered  for  a  long  time ;  it  recognised  that  it  was  just  to  liquidate,  compensate,  and  close, 
if  it  were  possible,  the  indemnities  which  might  be  respectively  due;  but  it  put  forth  as 
a  condition  to  any  stipulation  on  this  subject,  that  the  former  treaties  between  France 
and  the  United  States  should  be  previously  recognized,  considering  that  indemnities  could 
only  be  acknowledgment  of  uninterrupted  friendship  between  the  two  states,  a  disavowal 
of  all  the  violences  which  might  have  grown  out  of  a  simple  misunderstanding,  a  sort 
of  protest  againBt  every  thing  which  might  have  announced  a  hostile  intention,  a  new 
assurance  of  fidelity  to  the  old  conventions;  in  a  word,  considering  that  indemnities  could 
be  only  the  execution  of  the  old  treaties,  and  not  the  preliminary  of  a  new  one,  since 
avowing  their  annihilation  would  have  been  avowing  war,  and  imposing  on  that  one  of 
the  two  nations  which  would  have  to  pay  the  other  a  balance  of  indemnity  the  shameful 
obligation  of  purchasing  peace. 

“The  American  negotiators  considered  themselves  bound  by  the  act  of  Congress  which 
had  declared  the  treaties  null,  and  decided  that  it  was  impossible  that  they  could  recog¬ 
nise  them.  It  consequently  became  necessary  to  adjourn  the  respective  pretensions,  and 


6 


to  regulate  by  new  stipulations  the  relations  of  amity  and  commerce  which  the  negotia¬ 
tion  was  to  establish.  *  *  *  The  reservation  of  opening  ulterior  negotiations  rela¬ 

tive  to  the  treaties  and  the  indemnities  has  been  consigned  to  the  second  article,  of  which 
it  has  been  the  sole  object.  But  the  fear  of  awakening  lively  discussions,  and  of  view¬ 
ing  any  alteration  in  the  good  harmony  which  ought  to  be  the  happy  result  of  the  other 
stipulations,  has  caused  this  second  article  to  be  suppressed  in  the  acts  of  ratification. 
The  suppression  is  a  prudent  and  amicable  renunciation  of  the  respective  pretensions 
which  were  expressed  in  the  article.” 

And  a  further  report,  made  to  the  French  Tribunat,  on  the  same  subject,  on  the  13th 
of  Frimaire,  yearX,  (Dec.  4,  1801,)  contains  the  following: 

Extract. —  *  *  *  “The  American  Government,  forgetting  the  duties  of  neutrality, 

had  concluded,  under  the  influence  of  the  enemies  of  France,  a  treaty,  [with  England — 
Mr.  Jay’s,]  which  wounded  our  interests.  The  French  Government,  instead  of  entering 
into  negotiations  of  which  the  moderate  character  of  its  agents,  of  which  the  disposi¬ 
tions  of  the  American  people,  would  have  guarantied  the  success,  thought  proper  to  take 
rigorous  measures  with  regard  to  the  United  States ;  it  enacted,  decrees,  abrogated  the 
laws  favorable  to  the  Americans,  ordered  the  Minister  of  the  Republic  to  suspend  his 
functions  near  the  Federal  Government ;  and  when  the  United  States,  in  order  to  put  a 
period  to  the  measures  which  were  weighing  upon  them,  sent  three  envoys  to  Paris,  it 
seemed  litte  inclined  to  listen  to  them.  America  was  soon  replete  with  complaints 
against  France.  The  men  who  had  there  constantly  exhibited  themselves  as  its  enemies, 
seized  this  occasion  to  persuade  the  people,  that  without  compromitting  its  dignity  it 
could  not  treat  with  the  Republic.  They  deceived  minds,  exalted  passions,  and  without 
difficulty  influenced  a  Government  disposed  to  yield  to  the  impressions  which  they  gave 
to  it ;  and  the  legislative  authority  itself,  yielding  to  a  sentiment  which  it  Wrongfully 
believed  to  be  that  of  the  nation,  on  the  7th  of  July,  1798,  enacted  the  following  bill: 
[here  follows  a  copy  of  the  act  of  Congress  declaring  the  treaties  with  France  null.] 

“In  consequence  of  this  bill,  the  American  Government  suspended  the  commercial  re¬ 
lations  of  the  United  States  with  France,  and  gave  to  privateers  permission  to  attack  the 
armed  vessels  of  the  Republic.  The  national  frigates  were  ordered  to  seek  them,  and  to 
fight  them.  A  French  frigate  and  sloop  of  war,  successively  and  unexpectedly  attacked 
by  the  Americans,  were  obliged  to  yield  to  force ;  and  the  French  flag — strange  versa¬ 
tility  of  human  affairs — was  dragged,  humiliated,  before  the  same  people  who,  a  little 
while  ago,  with  eager  shouts  had  applauded  its  triumph. 

“’Twas  getting  past  recovery;  war  would  have  broken  out  between  America  and 
France,  if  the  Directory,  changing  its  system,  and  following  the  counsels  of  prudence, 
had  not  opposed  moderation  to  the  unmeasured  conduct  of  the  President  of  the  United 
States.  In  this  way  it  rendered  null  the  projects  of  the  American  Ministry,  which 
would  have  declared  war  against  us  if  it  only  had  its  wishes  to  consult.  But  in  being 
the  first  to  move  in  the  rupture  which  it  desired,  it  would  have  feared  its  inability  to 
rally  all  the  people  around  it ;  in  order  to  avoid  this  danger,  it  felt  the  necessity  of  con¬ 
quering  the  repugnance  which  the  Americans  had  for  war,  and  of  silencing  the  senti¬ 
ments  which  would  have  made  them  regret  to  take  up  arms  against  us.  It  is  with  this 
view,  that  by  hostile  measures,  it  was  provoking  from  our  part  a  declaration  of  war, 
whioh,  putting  the  aggression  on  our  side,  would  not  have  left  to  any  American  the  pos¬ 
sibility  of  isolating  himself  from  his  Government.  *  *  *  I  have  already,  Tribunes, 

told  you  that  the  United  States  had  declared  the  Consular  Convention  and  the  treaties 
of  1778  as  null  and  void,  and  believed  themselves  freed  from  the  obligations  which  they 
imposed  upon  them.  The  Government  of  the  Republic,  in  spite  of  this  act  of  Congress, 
did  not  regard  the  treaties  as  annulled,  thinking  that  a  treaty  could  only  be  abolished  by 
the  mutual  consent  of  the  two  contracting  parties,  or  by  a  declaration  of  war.  But,  on 
the  one  hand,  France  had  not  acceded  to  the  dissolution  of  the  treaties ;  on  the  other, 
there  had  not  been  any  declaration  of  war.  Commissions  granted  by  the  President  to 
attack  the  armed  vessels  of  France  are  not  to  be  regarded  as  a  declaration  of  war;  the 
will  of  the  President  does  not  suffice  to  prit  America  in  a  state  of  "war;  it  requires  a 
positive  declaration  of  Congress  to  this  effect.  None  has  ever  existed.  The  Republic 
was  therefore  justified  in  claiming  the  enjoyment  of  the  stipulations  comprehended  in 
the  old  treaties,  and  indemnity  for  the  non-executionjof  those  stipulations. 

“On  their  part,  the  United  States  claimed  indemnities  for  the  prizes  made  upon  their 
commerce ;  but  bound  by  the  act  of  Congress  of  July  7,  1798,  they  did  not  believe  them¬ 
selves  at  liberty  to  treat  according  to  the  basis  presented  by  the  French  Government ; 
and  the  Ministers  of  the  two°powers,  in  the  impossibility  of  resolving  a  difficulty  which 
met  them,  determined,  for  the  present  to  adjourn  it.  Such  was,  from  the  first,  the  object 
of  the  2d  article  of  the  Convention.  Nevertheless,  when  the  Senate  of  the  United  Stateg 


7 


examined  the  Conventirn,  it  approved  it,  with  the  retrenchment  of  the  2d  article,  and 
the  President  ratified  it  with  the  same  modification. 

“  It  thence  necessarily  followed  that  the  Americans,  in  not  recognizing  in  us  the  right 
of  reviving  our  old  treaties,  also  interdicted  to  themselves  the  right  of  claiming  for  in¬ 
demnities  ;  for  it  was  in  virtue  of  the  treaty  which  we  wished  to  revive  that  they  had 
the  power  to  claim  these  indemnities .  Hence,  if  the  treaties  of  1778  were  regarded  as 
existing,  it  was  clear  that  we  owed  indemnities  to  the  Americans  for  the  prizes  made 
upon  them  in  violation  of  the  stipulations  relative  to  the  liberty  of  the  flag ;  whilst,  if 
the  treaties  were  considered  as  abolished,  we  could  not  admit  the  claims  of  the  Ameri¬ 
cans,  since  they  could  not  support  them  by  any  authority.”* 

The  important  fact  should  not  be  overlooked  that  a  large  portion  of  the  spoliation 
claims  had  their  origin  prior  to  the  date  of  the  act  of  Congress  of  July  7,  1798,  which 
declared  the  treaties  with  France  null. 

The  conditional  ratification,  (having  the  2d  article  expunged,)  made  by  the  first 
Consul,  runs  thus : 

“Provided  that  by  this  retrenchment  the  two  States  renounce  [or  mutually  set  off] 
the  respective  pretensions  which  are  the  object  of  said  article.” 

g^^And  the  Senate  of  the  United  States,  and  the  President,  ratified  finally  the  Con¬ 
vention,  including  said  proviso. 

The  Emperor  Napoleon,  when  at  St.  Helena,  in  dictating  for  history  the  negotiating 
said  Convention,  which,  as  first  Consul,  he  had  signed,  records  the  following : 

“The  suppression  of  this  article  at  once  put  an  end  to  the  privileges  which  France  had 
possessed  by  the  treaty  of  1778,  and  annulled  the  just  claims  which  America  might  have 
made  for  injuries  done  in  time  of  peace.”  (Vide  Gourgaud’s  Memoirs  of  the  History  of 
France,  vol.  2,  p.  129. 

Ex-Secretary  of  State,  Timothy  Pickering,  in  reference  to  the  suppression  of  said  ar¬ 
ticle,  thus  records  his  judgment: 

“Thus  the  Government  [of  the  United  States]  bartered  the  just  claims  of  our  mer¬ 
chants  on  France,  to  obtain  a  relinquishment  of  the  French  claim  for  a  restoration  of  the 
old  treaties,  especially  the  burdensome  treaty  of  alliance,  by  which  we  were  bound  to 
guarantee  the  French  territories  in  America.”  (Vide  appendix  to  Senator  Clayton’s 
speech  in  Senate  of  April  23  and  24,  1846,  p.  32.) 

Ex-President,  John  Adams,  in  recording  his  judgment,  states  the  following : 

“  To  explain  all  the  mysteries  of  that  period  never  was  and  never  will  be  in  my  power. 
It  would  require  volumes  to  give  a  simple  history  of  it.  All  that  I  can  say  of  it  is,  there 
was  war  between  St.  Denis  and  St.  George ;  each  had  an  army  in  America,  constantly 
skirmishing  with  each  other,  and  both  of  them  constantly  stabbing  me  with  lancets, 
spikes  and  spears.  My  sole  object  was  to  preserve  the  peace  and  neutrality  of  the  country  ; 
and  that ,  I  thank  God ,  I  obtained}  at  the  loss  of  my  power  and  fame  with  both  sides.” 
(Vide  same,  p.  33.) 

In  Mr.  Madison’s  instructions,  as  Secretary  of  State,  to  Mr.  C.  Pinckney,  our  Minis¬ 
ter  to  Spain,  dated  Feb.  6,  1804,  is  found  the  following,  in  reference  to  the  suppression 
of  said  second  article  : 

“  The  plea  on  which  it  seems  that  the  Spanish  Government  now  principally  relies,  is 
the  erasure  of  the  second  article  of  our  late  Convention  with  France,  by  which  France  was 
released  from  the  indemnities  due  for  spoliations  committed  under  her  immediate  responsibility 
to  the  United  States.  This  plea  did  .not  appear  in  the  early  objections  of  Spain  to  our 
claims.  It  was  an  afterthought,  resulting  from  the  insufficiency  of  every  other  plea, 
and  is  certainly  as  little  valid  as  any  other.  The  injuries  for  which  indemnities  are 
claimed  from  Spain,  though  committed  by  Frenchmen,  took  place  under  Spanish  au- 


•The  translator  adds — “This  is  a  pros*  error;  the  spoliation  claims  were  fully  sustained  by  the  law  oj  nations , 
in  the  absence,  or  over  and  above  the  treaties  of  1778.  So  says  M.  Talleyrand  expressly  in  his  letter  of  instruc¬ 
tions  to  M.  Fichon.  See  doc.  No.  440,  p.  698,  accompanying  the  President’s  message  of  May  20,  1826,”  which 

runs  thus : 

“However,  as  in  ratifying  without  explanation,  the  two  Governments  would  have  found  themselves  in  an  un¬ 
equal  position  relative  to  the  provisions  expressed  in  the  suppressed  article — the  suppression  of  this  article  releas¬ 
ing  the  Americans  from  all  pretensions  on  our  part,  relative  to  ancient  treaties ;  and  our  silence  respecting  the 
same  article,  leaving  us  exposed  to  the  whole  weight  of  the  eventual  demands  of  [on]  this  Government  relative 
to  indemnities — it  has  become  necessary  that  a  form  be  introduced  into  the  act  of  ratification,  in  order  to  express 
the  sense  in  which  the  Government  of  the  Republic  understood  and  accepted  the  abolition  of  the  suppressed 
article. 


8 


thority ;  Spain,  therefore,  is  answerable  for  them.  To  her  we  have  looked,  and  continue 
to  look,  for  redress.  If  the  injuries  done  to  us  by  her  resulted  in  any  manner  from  in¬ 
juries  done  to  her  by  France,  she  may,  if  she  pleases,  resort  to  France,  as  we  resort  to 
her.  But  whether  her  resort  to  France  would  be  just  or  unjust,  is  a  question  between 
her  and  France ;  not  between  either  her  and  us,  or  us  and  France.  We  claim  against 
her,  not  against  France.  In  releasing  France,  therefore,  we  have  not  released  her. 
The  claims,  again,  from  which  France  was*released,  were  admitted  by  France ,  and  the  re¬ 
lease  was  for  a  valuable  consideration,  in  a  correspondent  release  of  the  United  States  from 
certain  claims  on  them.  The  claims  we  make  on  Spain  were  never  admitted  by  France, 
nor  made  on  France  by  the  United  States  ;  they  made,  therefore,  no  part  of  the  bargain 
with  her ,  and  could  not  be  included  in  the  release .”  (Vide  Senate  doc.,  19th  Con.,  No.  102, 
p.  795. 

M.  de  Onis,  the  Minister  of  Spain,  in  negotiating  the  Florida  treaty  with  Mr.  J.  Q. 
Adams,  and  in  reference  to  the  claims  against  Spain,  to  which  Mr.  Madison’s  instructions 
just  cited  refer,  says  : 

“  The  United  States  were  not  at  war  with  France,  consequently  their  recourse,  as  the 
aggrieved  party,  was  always  open  to  the  Government  and  tribunals  of  the  aggressor.” 
(Vide  Wait’s  State  papers,  vol.  12,  p.  46.) 

In  President  Jefferson’s  message  to  Congress  of  8th  December,  1801,  the  following  ap¬ 
pears  : 

“It  is  a  circumstance  of  sincere  gratification  to  me,  that  on  meeting  the  great  coun¬ 
cil  of  the  nation,  I  am  able  to  announce  to  them,  on  grounds  of  reasonable  certainty,  that 
the  wars  and  troubles  which  have  for  so  many  years  afflicted  our  sister  nations  have  at 
length  come  to  an  end ;  and  that  the  communications  of  peace  and  commerce  are  once 
more  opening  among  them.  Whilst  we  devoutly  return  thanks  to  the  beneficient  Being 
who  has  been  pleased  to  breathe  into  them  the  spirit  of  conciliation  and  forgiveness,  we 
are  bound,  with  peculiar  gratitude,  to  be  thankful  to  Him,  that  our  own  peace  has  been 
preserved  through  so  perilous  a  season,  and  ourselves  permitted  quietly  to  cultivate  the 
earth,  and  to  practice  and  improve  those  arts  which  tend  to  inerease'our  comforts.  The 
assurances  indeed  of  friendly  disposition  received  from  all  the  powers  with  whom  we 
have  principal  relations,  had  inspired  a  confidence  that  our  peace  with  them  would  not 
have  been  disturbed.  But  a  cessation  of  the  irregularities  which  had  afflicted  the  com¬ 
merce  of  neutral  nations,  and  of  the  irritations  and  injuries  produced  by  them,  cannot 
but  add  to  this  confidence ;  and  strengthens,  at  the  same  time,  the  hope  that  wrongs  com¬ 
mitted  on  unoffending  friends,  under  a  presure  of  circumstances,  will  now  be  reviewed 
with  candor,  and  will  be  considered  as  founding  just  claims  of  retribution  for  the  past, 
and  new  assurances  for  the  future.”  (Vide  Wait’s  State  papers,  vol.  4,  p.  325.) 

Note — It  is  confidently  expected  that,  in  considering  the  bill  now  pending  in  Congress 
for  the  relief  of  those  of  our  citizens  who  suffered  from  spoliations  by  the  French  prior 
to  the  Convention  with  France  of  1800,  those  members  of  Congress  who  have  heretofore 
opposed  or  now  oppose  such  relief,  on  the  supposition  that  war  existed  between  the 
United  States  and  France,  and  that  said  spoliation  claims  were  merged  in  the  supposed 
war  and  thereby  lost  to  the  claimants,  will  abandon  such  ground  of  opposition  as  utterly 
baseless  and  untenable,  under  the  imposing  and  irresistible  facts  above  set  forth.  But 
should  a  doubt  on  that  point  still  exist  in  the  mind  of  any  one,  there  remains  to  be  stated 
a  reserved  fact,  that  must  surely  dissipate  all  doubt,  viz  : 

If,  contrary  to  the  truth,  and  for  the  sake  of  the  agument  solely,  it  be  admitted  that 
there  was  war — aye,  twenty  wars — that  would  each  annul  all  existing  treaties;  and  ad¬ 
mitting,  further,  that  the  Convention  of  1800  was  a  real  treaty  of  peace,  still  it  bears  on 
its  face  the  important  and  overruling  fact,  that  the  said  claims  were  recognised  and  saved 
by  its  provisions. 

Besides,  these  claims  derived  but  slender  support  from  the  treaties  with  France — and 
if  the  treaties  had  never  existed,  were  clearly  valid  claims  against  her  under  the  law  of 
nations — which  could  be  now  successfully  plead  against  her,  but  that  our  own  Govern¬ 
ment,  for  its  own  purposes,  has  bargained  nway  both  the  claims  and  that  remedy ; 
and  having  done  so,  cannot  escape  or  excuse  itself  from  responsibility  for  them. 
The  abrogation  of  the  treaties  was  not  an  abrogation  of  said  claims ;  it  was  the  direct 
and  voluntary  application  of  them  to  the  public  use  by  our  Government,  which  trans¬ 
ferred  the  obligation  to  satisfy  them  from  France  to  the  United  States. 


